Short Answer

In North Carolina, if your spouse survived the original decedent by at least 120 hours, your spouse’s share of the sale proceeds vested and becomes part of your spouse’s estate. The Clerk will pay that share to your spouse’s personal representative after the original estate’s costs and valid claims are paid. Your spouse’s estate then pays its own costs, any family allowances, and distributes the balance under North Carolina’s intestacy rules. If your spouse did not survive 120 hours, they are treated as having predeceased and do not take a share.

Understanding the Problem

In North Carolina probate, you want to know whether you can receive your deceased spouse’s share of surplus sale proceeds from the court when your spouse died after the sale but before the Clerk distributed the funds, and there was no will.

Apply the Law

North Carolina applies a 120-hour survivorship rule. If an heir survives the decedent by at least 120 hours, that heir is treated as having survived and their share vests. Sale proceeds are distributed only after the estate’s administration costs and allowed claims are paid. When a distributee dies after vesting but before payment, the check is made to that person’s estate through their personal representative. In the deceased spouse’s estate, the Clerk can award a year’s allowance to the surviving spouse and children, and any remainder is distributed by intestacy. The Clerk of Superior Court handles both estates.

Key Requirements

• 120-hour survival: Your spouse must have survived the original decedent by at least 120 hours; otherwise, they are treated as having predeceased and receive nothing.
• Claims come first: The Clerk pays administration costs and allowed creditor claims in the original estate before distributing surplus proceeds to heirs.
• Payment to an estate: If an heir dies after their share vests, the Clerk pays that share to the deceased heir’s personal representative (after you open and qualify an estate).
• Year’s allowance priority: In your spouse’s estate, the spousal year’s allowance is awarded and paid from personal property before general distributions.
• Intestacy controls final recipients: With no will, the deceased spouse’s balance passes under North Carolina intestate succession (between surviving spouse and children).

What the Statutes Say

• North Carolina Gen. Stat. § 28A-24-2 (120-hour survivorship) – An heir who does not survive by 120 hours is deemed not to have survived.
• North Carolina Gen. Stat. § 28A-22-1 (Distribution after payment of claims) – Personal representative distributes only after paying costs and valid claims.
• North Carolina Gen. Stat. § 30-15 (Spousal year’s allowance) – Authorizes a year’s allowance to a surviving spouse from personal property.
• North Carolina Gen. Stat. § 29-14 (Surviving spouse’s intestate share) – Sets the surviving spouse’s share when there is no will.

Analysis

Apply the Rule to the Facts: Because your spouse died after the sale but before distribution, first confirm they survived the original decedent by at least 120 hours. If yes, their share of the surplus vested and will be paid to your spouse’s estate through the personal representative you open and qualify. In that estate, you can seek a year’s allowance from personal property (which can include the sale proceeds when received), and the remaining balance will pass under intestacy among you and the three children. If your spouse did not meet the 120-hour rule, their share reverts to the original decedent’s other heirs.

Process & Timing

1. Who files: The surviving spouse or another eligible person. Where: Clerk of Superior Court in the county of the deceased spouse’s domicile. What: Open the deceased spouse’s estate (apply for Letters) and file an Application and Assignment of Year’s Allowance (AOC-E-100). When: If Letters have been issued in your spouse’s estate, file the year’s allowance within six months of the date Letters were issued.
2. Provide the Letters of Administration/Letters Testamentary from your spouse’s estate to the Clerk handling the original estate’s sale file and request that the deceased heir’s share be paid to your spouse’s personal representative. Timing for the original estate’s distribution varies by county and depends on claims and final accounting.
3. In your spouse’s estate, the personal representative pays that estate’s costs and claims, applies the year’s allowance, then distributes any remainder to heirs under intestacy. The Clerk audits the final account and issues a discharge when complete.

Exceptions & Pitfalls

• If your spouse did not survive the original decedent by 120 hours, your spouse is treated as having predeceased and their share is redistributed in the original estate.
• Do not try to pay children directly from the original estate; the Clerk will require payment to your spouse’s personal representative.
• Accounts with named beneficiaries or assets held with a right of survivorship usually pass outside the estate; they are not part of the intestate pool (though some assets can be reached to pay claims in limited circumstances).
• Missing the year’s allowance filing window after Letters are issued, or failing to open the spouse’s estate, can delay or jeopardize distribution.

Talk to a Probate Attorney

If you’re dealing with a deceased heir’s share of court-held sale proceeds and need to open a spouse’s estate and claim allowances, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.